CTE17 v Minister for Immigration

[2018] FCCA 1951

FEDERAL CIRCUIT COURT OF AUSTRALIA

CTE17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1951

Catchwords:
CITIZENSHIP AND MIGRATION – Migration – Review of decisions – Judicial review – decision of Immigration Assessment Authority – whether Authority considered an integer of the applicant’s claims.

Legislation:

Migration Act 1958 (Cth), ss.5H(1), 426A, 473CB, Part 7AA

Applicant: CTE17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 581 of 2017

Judgment of: Judge Jarrett

Hearing date: 13 April 2018

Date of Last Submission: 13 April 2018

Delivered at: Brisbane

Delivered on: 19 July 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Minter Ellison

The Second Respondent entered a submitting appearance

ORDERS

1. The application filed on 20 June, 2017 be dismissed;

2. The applicant pay the first respondent’s costs of the application fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 581 of 2017

CTE17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of a decision of the second respondent made on 17 May, 2017 which affirmed a decision of a delegate of the first respondent not to grant the applicant a Safe Haven Enterprise visa.

2. The first respondent opposes the application.  The second respondent enters a submitting appearance.

3. The applicant is a citizen of Bangladesh.  He arrived in Australia on 14 April, 2013.  For the purposes of the Migration Act 1958 (Cth) he is an unauthorised maritime arrival.

4. On 11 April 2016, the applicant lodged an application for the visa.  He provided a statutory declaration in which he claimed to fear harm on account of his support for the Awami League and on account of a land dispute.  In its reasons for decision, the second respondent summarised the applicant’s claims as follows:

   ·The applicant’s family was involved with the Awami Krishok-Sromik League party, but did not have a good relationship with the leaders of other factions within the Awami League. His cousin [redacted] had fought with the nephew of Farhad Hossain, the local Awami Leader and member of parliament, on a number of occasions over party leadership.

   ·The applicant’s father and uncles had inherited land from his grandfather. On 3 March 2012 the applicant and others were working on the farm when former Union member and local Bangladesh National Party leader Alauddin Biswas, accompanied by others, came and claimed to now be the owner of the land. On 21 July 2012 Alauddin returned with a group of people armed with sticks and swords to take possession of the property. A physical altercation broke out and the applicant and his family were injured. The men took possession of the land.

   ·The applicant’s father indicated that the family did not have any legal documents for the land. The family approached Eklasur Rahman, the leader of the Krishok Sromik League. Rahman attempted to get help from the local Awami League leader, and to obtain legal assistance, but to no avail. He arranged a meeting with other members of the party and it was decided they would repossess the land.

   ·On 28 September 2012 the family returned to the land with Rahman and other Krishok Sromik members, and a fight broke out in which the son of Alauddin was badly injured. Charges were filed against the applicant and others, they were suspected from the Krishok Srikom League party and Rahman was arrested.

   ·Police came to look for the applicant and he and his brother went to stay at an aunt’s house in Khulna. When returning to their village in November 2012 to see their father, who was unwell, they were told that the police and Alauddin’s gang from the BNP were looking for them. The following day, BNP members from Alauddin’s gang spotted the applicant and his brother at a bus stop. His brother ran away but the applicant was captured and beaten. He was told if Alauddin’s son died he would be killed. The applicant returned to Khulna. Neither the applicant nor his family saw his brother again between that day and when the applicant departed Bangladesh and the applicant has had no news of him since.

   ·On 18 February 2013 Alauddin’s son died. The Alauddin gang beat the applicant’s parents and threatened to kill anyone involved in the death. The applicant’s parents came to see him in Khulna and his father arranged for his travel overseas. The applicant departed Bangladesh by boat from Cox Bazaar on 10 March 2013. There are ongoing legal proceedings over the land dispute in which the applicant is named as an accused.

   ·The applicant’s father has been told that if he disassociates from the Awami League, the police complaint will be withdraw.

   ·The applicant fears harm from BNP and opposing Awami League groups and because the police are looking for him.

5. On 22 December, 2016 a delegate of the first respondent refused to grant the applicant the visa for which he applied.  The delegate’s decision was a fast track reviewable decision and was referred by the first respondent to the second respondent for review.

6. On 17 May, 2017 the second respondent affirmed the decision under review. For the purposes of the review, the second respondent received the material forwarded to it by the secretary of the first respondent’s department under s.473CB of the Act. No further information was obtained or received by the second respondent.

7. Put shortly, the second respondent did not accept the applicant’s claims.  As to the first of the applicant’s claims that conflicts with the BNP and with other factions of the Awami League put his life in danger, the second respondent noted that at his visa interview the applicant stated that he was not a supporter of any party and he indicated he did not have any political involvement in Bangladesh.  In light of this, and country information regarding AL factions, the second respondent was not satisfied that the prospect of the applicant being caught in political violence was more than remote and was not satisfied that there was a real chance of the applicant being harmed on the basis of his support for the AL or any of its factions.

8. As to the land dispute and the altercations with Alauddin and his associates, the second respondent said:

   17.    I do not consider the applicant’s claims credible. I do not accept that the applicant’s family land was taken, that he was involved in altercations or fights with Aluddin’s gang or BNP members relating to the land dispute or the injury of Alauddin’s son, that he has been charged over those altercations or has been implicated in a murder, or that he is being sought after by police, Alauddin or by local BNP or gang members. I am not satisfied there is a real chance of the applicant being harmed in the reasonably foreseeable future in relation to any of these matters.

9. The second respondent reached those conclusions because it found that while the applicant claimed his affiliation with a faction of the AL underpinned the land dispute, there were significant inconsistencies between the information he provided in earlier interviews and his current claims regarding the context of the altercation and the dispute with BNP.

10. The claim he made at his April, 2013 entry interview that the BNP beat him because he refused to join their party, he accepted was false.  He provided a number of explanations for why he made that false claim.  Nonetheless, the applicant said that the BNP were occupying the land because of their political influence and suggested that his earlier claim that they were inviting him to join and his current claim that they were occupying land because of the party were very similar. But the second respondent did not accept that submission.  It found that the April 2013 interview presented a fundamentally different basis for the conflict with the BNP than the applicant’s current claims.  The second respondent did not accept the applicant’s reasons for his inconsistent evidence and found that the inconsistencies seriously undermined his credibility.

11. The second respondent was concerned that the applicant did not mention the political element to the land dispute claim prior to his visa interview with the first respondent’s delegate.  The second respondent recorded:

    12.    When responding to the delegate’s concerns, the applicant raised a new claim. He said his father was told that if he disassociated from the party, they would remove the case. That claim was made for the first time in response to the adverse information from the April 2013 interview. Earlier in the SHEV interview, the delegate had asked the applicant to explain the political element of the land dispute, and had asked the applicant why he thought that it was related to politics. The applicant referred to his family and the persons on the other side of the dispute being from opposing political parties yet made no mention of this claimed request to his father, which clearly indicates a political element. In any event, even if the applicant’s father was asked to join the party, it does not explain why the applicant claimed that he personally had been asked to join and that that was the reason for the dispute, or why he omitted to mention the land dispute at all.

12. There were also inconsistencies in the accounts given by the applicant about his brother:

    13.    In addition, the applicant has given contradictory evidence regarding his brother. On the evidence given by the applicant, he has only one brother. His claim at the SHEV interview was that after he and his brother were spotted at a bus stop by the BNP gang in November 2012, his brother ran off and the applicant did not see him again. He claimed to have had no news from him since that time. These claims are inconsistent with the applicant’s responses to questions at the April 2013 interview, the month following his departure from Bangladesh. In response to routine background questions, the applicant gave information that his brother is married but living with his parents and looking after them. In giving a contact number for his home in Bangladesh, he specifically indicated the number was that of his brother. He also agreed to have that number used as an emergency contact.

    14.    The applicant gave these details in response to simple background questions about his personal circumstances. He otherwise provided family details consistent with those given subsequently. It was the applicant who volunteered the additional information that his brother was married and looking after his parents. I do not accept that these responses were somehow impacted by the applicant’s condition at the time of the interview, lack of knowledge of the law, or any other limitation on his ability to provide accurate details. I find them more reliable that (sic) the information he provided subsequently. Furthermore, a Bangladeshi Court Order Sheet dated 28 February 2016 and submitted by the applicant refers to his brother as having been bailed, rather than absconded, which would suggest that he is not ‘missing’. These matters undermine the applicant’s claim that his brother went missing following the November 2012 incident.

13. The second respondent considered the documentary evidence submitted by the applicant regarding the legal proceedings and medical treatment following the physical altercation with Alauddin.  Of those documents the second respondent said:

    16.    Considering the evidence as a whole, I find that the applicant has made inconsistent claims regarding the basis for his altercations with the BNP. On his own evidence he had fabricated one of those accounts. He has provided inconsistent evidence regarding his brother, relevant to the claims he now makes. Noting that various fraudulent documents can be obtained easily in Bangladesh,3 the existence of the documents he has submitted do not outweigh my concerns over the credibility of the claims.

14. As set out above, the second respondent rejected the applicant’s claims to have been involved in a land dispute or the injury of Alauddin’s son, or that he had been charged over these altercations or implicated in a murder.  The second respondent was not satisfied that the applicant was being sought by the police, the BNP or gang members.

15. The second respondent rejected the applicant’s claims entirely and found that he did not meet the requirements of the definition of refugee in s.5H(1) of the Act. For the same reasons, the second respondent found that the applicant did not satisfy the complementary protection criterion.

Grounds of review

1. The application for judicial review contains the following grounds of review (faithfully reproduced):

   1. The Second Respondent erred in its exercise of discretion in s.426A of the Migration Act 1958.

   Particulars

   a.  The Second Respondent did not consider the possibility that the applicant was ‘brain-washed’ by people smuggler, thereby recognising that could be differences in his answers.

   2. The Second Respondent committed an error of law or failed to discharge its duty to review.

   Particulars

   a.  by failing to consider an integer of the applicant’s claims and/or by failing to take into account relevant consideration

   b.  At paragraph 8 of its decision record the Second Respondent acknowledged that the applicant had consistently identified a political basis on his claims since his arrival in Australia.

   c.  The Second Respondent after acknowledging that the applicant had been consistent in his claim, erred by failing to consider any integer of the Applicant’s claim.

   d.  The Second respondent took a very narrow view of the applicant’s claim when considering the ‘political basis’ of the applicant’s claims.

2. I will deal with each ground separately.

3. Ground one refers to s.426A of the Act. That section had no application to the review conducted by the second respondent. The review was conducted pursuant to Part 7AA of the Migration Act, not Part 7 in which s.426A appears. The ground of review is misconceived and has no merit. Part 7AA has no equivalent to s.426A in Part 7A.

4. This ground also contends that the second respondent failed to consider the possibility that the applicant had been brain-washed by a people smuggler, which could have explained “the differences in his answers”.  However, no such contention was advanced by the applicant to the first respondent’s delegate or the second respondent.  Moreover, there is nothing in the applicant’s claims or evidence to suggest that he had been brainwashed by a people smuggler.  The applicant was given an opportunity to explain his inconsistent evidence in his visa interview on 14 November, 2016.  He gave various explanations but did not mention any concerns about the people smugglers.

5. The second respondent was not obliged to consider the possibility now advanced by the applicant that he was brainwashed by a people smuggle because it is not a matter that was raised on the material or arguments before either the primary decision maker or in submissions to the second respondent.

6. The second ground of review refers to the second respondent’s finding at [8]. That is in the following terms:

   8.  The applicant has consistently identified a political basis to his claims since his arrival in Australia. In an arrival interview on 25 April 2013 (April 2013 interview), he claimed that he was a supporter of the Awami League. He said he had left Bangladesh because of political problems, that he was implicated by the BNP in a case of gang fighting, he had been beaten in August and again in November and that the police were harassing him. A written record of a further biodata interview on 9 May 2013 (May 2013 interview) indicates the applicant as saying that the opposition party fabricated a case against him and he had been in hiding.

7. While the second respondent did note that the applicant had consistently identified a political basis for his claims, as I have set out above, the second respondent rejected each of the claims made by the applicant.  It did not accept that:

   a)the applicant’s family land was taken;

   b)that he was involved in altercations or fights with Alauddin’s gang or BNP members relating to the land dispute or the injury of Alauddin’s son;

   c)that he had been charged over those altercations or had been implicated in a murder; or

   d)that he was being sought after by police, Alauddin or by local BNP or gang members.

8. The second respondent accurately identified the applicant’s claims.  On the applicant’s claims there was a political basis to the events that formed the kernel of his claims to protection.  But the “political basis” went no further.  And in any event, the second respondent rejected the applicant’s claims because it did not think them credible.

9. The was no failure by the second respondent to identify an integer of the applicant’s claims.  There was no failure by the second respondent to consider any integer of the applicant’s claims.  This ground reveals no error.

Conclusion

1. The application does not reveal jurisdictional error.  The application for review must be dismissed with costs.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Associate: 

Date:  19 July 2018